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The first and most material objection to the report of the referee urged by the defendants is, that it is against the weight of evidence in finding that the plaintiffs did not represent, at the time they obtained the consent of the company to the transfer of the policy from Elle, that they had purchased the property insured, and that it was then in the plaintiffs' store.
There is oral evidence on both sides of the question; but that principally relied on, as conclusive in favor of the defendants, is the written consent to the transfer, which states, on its face, that the interest of Elle in the policy may be transferred to N. Marco Son (the plaintiffs), "as purchasers of theproperty."
On this point, the evidence of Samuel Marco, one of the plaintiffs, who made the negotiation, is as follows: "I said, we wanted the policy transferred to us; I said nothing about buying goods; I said, we had bought the policy, and wanted he should transfer it to Congress street; Mr. Hays came down and looked at the place and the goods, and brought the policy, and told me I should have to give him five dollars more; he said that was a wooden building, and the other brick; he brought the paper (the consent) attached."
On the part of the defendants, Jared G. Bacon, their agent, who issued the policy, testified that Samuel Marco came to his office and (using his own language) "asked me if I would transfer the policy to him; I asked him why he wanted it done; he replied that he had bought Elle's stock of goods
and wanted the benefit of the policy; I asked him where the goods were; he said he had taken them to his store in Congress street; I said to Mr. Hays, in Marco's presence, that he might go down to the store and examine the premises; I then replied to Marco and said, unless you have bought these goods and put them in your store I will not transfer the policy, but that if he had bought them I would consent to the transfer; he replied that he had bought his whole stock of goods."
Hugh Hays, a clerk of the agent, Bacon, testified as follows: "I understood Marco, when he was negotiating with me for the consent to remove the insurance, that his firm had purchased the insured property; that the goods were already in the store in Congress street."
On his cross-examination, Hays further testified that Marco spoke very broken English, very difficult for him to understand, and that there was a possibility that he misunderstood him.
There are three consents indorsed upon the policy — two bearing date the 8th of September, and another on the 3d of October 1857. They were all of them read in evidence.
The three consents read as follows, viz.:
1. "Consent that the interest of G. Elle in this policy may be transferred to N. Marco Son, as purchasers of the property. J.G. BACON, Agent.
"Troy, September 8, 1857."
2. "This policy is transferred to the two story frame building owned by Mr. McGuire, on the east side of Whitehall street, being the second building south of Utica street, in the village of West Troy, N.Y., and five dollars consideration paid. J.G. BACON, Agent,
"September 8, 1857." Per HAYS.
3. "This policy is hereby transferred to the frame building known as No. 109, on the north side of Congress street, Troy, and five dollars consideration paid for the increased risk. J.G. BACON, Agent,
"Troy, October 3, 1857. Per H."
The first consent was in the handwriting of Bacon, the agent, and signed by him. The last two were written by his clerk, Hays, by his direction.
There is nothing in the evidence explaining the meaning of the transfer of the policy to the building in Whitehall street, dated the 8th of September. The fire occurred, and the property destroyed, was at 109 Congress street; and it appears that the plaintiffs were in business there at the time the consent to assign the policy was applied for.
So far as anything appears from the evidence, the second consent, of September 8th, on the policy, was wholly inoperative. The instrument that operated to transfer the policy, so as to cover the stock in the building destroyed by fire, was that of October 3d 1857, the last of the three consents.
It will be observed that the question is not as to the meaning of the consents, or any of them. It is, whether there was any misrepresentation by the plaintiffs, or either of them, as to their having purchased the stock of Elle, and whether the defendants or their agent, Bacon, were influenced by such representations to consent to the transfer.
For the purpose of explaining the terms of these consents, the parol evidence was wholly inoperative; but upon the question of misrepresentation the writing was not conclusive, and was open to explanation by other evidence, either written or by parol.
The fact that the plaintiffs received a consent in writing from the agent, stating that they were purchasers of the property insured, is strongly corroborative of the position claimed by the defendants, that there was such an understanding on the part of the agent; but it is not conclusive that Samuel Marco, who, alone of the plaintiffs, had any conversation with Bacon, did, in fact, so state or represent.
The fact that he spoke in broken English, very difficult to understand, as testified by Hays, the clerk, explains the contradiction in the evidence of the witnesses to my satisfaction. It is not to be assumed, that either Samuel Marco or Mr. Bacon, testified willfully false; but their testimony is to be harmonized, if possible. Bacon wrote the first consent, and
he probably wrote the statement about the purchase as he understood it. It is in conformity with his testimony, as to what Marco said about the purchase of the stock of Elle. The evidence of Samuel Marco appears free from any internal contradiction, inconsistency or prevarication. Standing alone, it is clear from the slightest cause to doubt its entire honesty and truth. The evidence of Bacon, and that afforded from the first consent as prepared by himself, is open to the doubt that he acted upon a misunderstanding of what was said by Samuel Marco, who was a Prussian-Pole, and, as it appears from the evidence of Hays, spoke very broken English. Whether Marco misunderstood Bacon, or Bacon misunderstood Marco, is of no practical importance on the question of misrepresentation. According to the evidence of Hays, the agent, Bacon, was not in the office during the conversation with Marco and Elle, when they applied for the consent to transfer the policy; but that Bacon afterward came in, and he (Hays) told him about it, when Bacon told him to go and see the premises, which he did, and reported to Bacon, and then the consent was executed, and he took the policy down to the plaintiffs. This concurs also with the evidence of Samuel Marco, who states that his conversation was with Hays. These facts indicate that Bacon wrote the consent, either upon the report of his clerk, as to what he had understood from the conversation of Marco, or from having, himself, misunderstood his broken speech. It having been written by Bacon, and afterward sent by Hays to the plaintiffs, takes from the written consent that corroborative force which, under other circumstances, it would possess.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
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The first and most material objection to the report of the referee urged by the defendants is, that it is against the weight of evidence in finding that the plaintiffs did not represent, at the time they obtained the consent of the company to the transfer of the policy from Elle, that they had purchased the property insured, and that it was then in the plaintiffs' store.
There is oral evidence on both sides of the question; but that principally relied on, as conclusive in favor of the defendants, is the written consent to the transfer, which states, on its face, that the interest of Elle in the policy may be transferred to N. Marco Son (the plaintiffs), "as purchasers of theproperty."
On this point, the evidence of Samuel Marco, one of the plaintiffs, who made the negotiation, is as follows: "I said, we wanted the policy transferred to us; I said nothing about buying goods; I said, we had bought the policy, and wanted he should transfer it to Congress street; Mr. Hays came down and looked at the place and the goods, and brought the policy, and told me I should have to give him five dollars more; he said that was a wooden building, and the other brick; he brought the paper (the consent) attached."
On the part of the defendants, Jared G. Bacon, their agent, who issued the policy, testified that Samuel Marco came to his office and (using his own language) "asked me if I would transfer the policy to him; I asked him why he wanted it done; he replied that he had bought Elle's stock of goods
and wanted the benefit of the policy; I asked him where the goods were; he said he had taken them to his store in Congress street; I said to Mr. Hays, in Marco's presence, that he might go down to the store and examine the premises; I then replied to Marco and said, unless you have bought these goods and put them in your store I will not transfer the policy, but that if he had bought them I would consent to the transfer; he replied that he had bought his whole stock of goods."
Hugh Hays, a clerk of the agent, Bacon, testified as follows: "I understood Marco, when he was negotiating with me for the consent to remove the insurance, that his firm had purchased the insured property; that the goods were already in the store in Congress street."
On his cross-examination, Hays further testified that Marco spoke very broken English, very difficult for him to understand, and that there was a possibility that he misunderstood him.
There are three consents indorsed upon the policy — two bearing date the 8th of September, and another on the 3d of October 1857. They were all of them read in evidence.
The three consents read as follows, viz.:
1. "Consent that the interest of G. Elle in this policy may be transferred to N. Marco Son, as purchasers of the property. J.G. BACON, Agent.
"Troy, September 8, 1857."
2. "This policy is transferred to the two story frame building owned by Mr. McGuire, on the east side of Whitehall street, being the second building south of Utica street, in the village of West Troy, N.Y., and five dollars consideration paid. J.G. BACON, Agent,
"September 8, 1857." Per HAYS.
3. "This policy is hereby transferred to the frame building known as No. 109, on the north side of Congress street, Troy, and five dollars consideration paid for the increased risk. J.G. BACON, Agent,
"Troy, October 3, 1857. Per H."
The first consent was in the handwriting of Bacon, the agent, and signed by him. The last two were written by his clerk, Hays, by his direction.
There is nothing in the evidence explaining the meaning of the transfer of the policy to the building in Whitehall street, dated the 8th of September. The fire occurred, and the property destroyed, was at 109 Congress street; and it appears that the plaintiffs were in business there at the time the consent to assign the policy was applied for.
So far as anything appears from the evidence, the second consent, of September 8th, on the policy, was wholly inoperative. The instrument that operated to transfer the policy, so as to cover the stock in the building destroyed by fire, was that of October 3d 1857, the last of the three consents.
It will be observed that the question is not as to the meaning of the consents, or any of them. It is, whether there was any misrepresentation by the plaintiffs, or either of them, as to their having purchased the stock of Elle, and whether the defendants or their agent, Bacon, were influenced by such representations to consent to the transfer.
For the purpose of explaining the terms of these consents, the parol evidence was wholly inoperative; but upon the question of misrepresentation the writing was not conclusive, and was open to explanation by other evidence, either written or by parol.
The fact that the plaintiffs received a consent in writing from the agent, stating that they were purchasers of the property insured, is strongly corroborative of the position claimed by the defendants, that there was such an understanding on the part of the agent; but it is not conclusive that Samuel Marco, who, alone of the plaintiffs, had any conversation with Bacon, did, in fact, so state or represent.
The fact that he spoke in broken English, very difficult to understand, as testified by Hays, the clerk, explains the contradiction in the evidence of the witnesses to my satisfaction. It is not to be assumed, that either Samuel Marco or Mr. Bacon, testified willfully false; but their testimony is to be harmonized, if possible. Bacon wrote the first consent, and
he probably wrote the statement about the purchase as he understood it. It is in conformity with his testimony, as to what Marco said about the purchase of the stock of Elle. The evidence of Samuel Marco appears free from any internal contradiction, inconsistency or prevarication. Standing alone, it is clear from the slightest cause to doubt its entire honesty and truth. The evidence of Bacon, and that afforded from the first consent as prepared by himself, is open to the doubt that he acted upon a misunderstanding of what was said by Samuel Marco, who was a Prussian-Pole, and, as it appears from the evidence of Hays, spoke very broken English. Whether Marco misunderstood Bacon, or Bacon misunderstood Marco, is of no practical importance on the question of misrepresentation. According to the evidence of Hays, the agent, Bacon, was not in the office during the conversation with Marco and Elle, when they applied for the consent to transfer the policy; but that Bacon afterward came in, and he (Hays) told him about it, when Bacon told him to go and see the premises, which he did, and reported to Bacon, and then the consent was executed, and he took the policy down to the plaintiffs. This concurs also with the evidence of Samuel Marco, who states that his conversation was with Hays. These facts indicate that Bacon wrote the consent, either upon the report of his clerk, as to what he had understood from the conversation of Marco, or from having, himself, misunderstood his broken speech. It having been written by Bacon, and afterward sent by Hays to the plaintiffs, takes from the written consent that corroborative force which, under other circumstances, it would possess. It is to be taken now as evidence, only of what Bacon understood when he wrote it.
The want of materiality is also to be taken into consideration, in determining the question of willful or fraudulent misrepresentation.
It appears, from the evidence of Hays, that it is customary to issue a new policy to a third party for the unexpired term, for the same consideration that the company would consent to a transfer. He said, also, if required, we would have
issued a new policy, and have given credit for the unexpired term on the old policy, or have issued a new policy to any other party, or given consent to transfer.
From this evidence, it appears, very plainly, that there was no object for Marco to make any misrepresentation. The plaintiffs could have had a new policy, had they asked for it, receiving credit for the unexpired portion of the policy purchased from Elle, which had then been running only one month from the date it was issued.
These considerations lead me to the conclusion that the referee came to a correct decision on the question of fraudulent representations, and that there was no cause here for the General Term to reverse the judgment.
The judgment of a court or jury, who see the witnesses, and have the best opportunity for determining their character and manner of testifying, ought not to be disturbed on a question of fact, except on very clear and irrefragable evidence of error in the conclusion. Such a case is not here presented.
The defendants also insist that the agent is not proven to have any authority to consent to an assignment of the policy, and no authority to apply it to any property, except that belonging to Elle and described in the policy; but that, if the authority be assumed or conceded, the consent applies only to a new locality, and not to a new or different subject of insurance.
The consent is somewhat indefinite in its terms; but, I think, a fair reading includes the property within the premises, and not the premises or building within which the ready-made clothing and materials of the plaintiffs were contained. The policy covered a stock of ready-made clothing and materials. The plaintiffs had similar clothing and materials. They had no interest in the building. The reasonable conclusion is, that the "transfer to the frame building, known as No. 109, on the north side of Congress street," connected with the nature of the policy, transfers it to the stock of the plaintiffs, and not to the building. The complaint alleges a
transfer of the policy by the defendants, and no issue is made by the answer in respect to this allegation.
The fact of the transfer is to be deemed admitted, therefore, for the want of any denial. It is, also, to be observed, that there is no exception to the report, pointing to any want of proof of authority by the agent.
There was no motion to dismiss the complaint; and the questions respecting the validity of the transfer by the company, or of the execution of the policy, appear never to have been raised until the present time.
The referee finds that the defendants, by the consent of September 8th, 1857, stipulated that the policy should cover the plaintiffs' property. The referee has mistaken the consent applicable to the case. It is that of October 3d 1857, that makes the stipulation referred to. This consent applies to No. 109 Congress street, where the fire occurred; while that of September 8th mentions certain premises in Whitehall street, where there has not been any fire, and where the plaintiffs had no property.
The policy is signed by three persons, who are described therein as directors, and have affixed their personal seals, and their signatures, to the instrument. The defendants object that this does not prove a contract binding upon the defendants.
The all-significant answer to this objection is, that the complaint alleges the policy to have been executed by the defendants, and the answer admits it in express terms.
Although the answer alleges that the plaintiffs caused the fire which consumed their property, and fraudulently removed some part of their stock before the fire, no exception is taken to the report for negativing this defense; nor has any point been made by the defendants in respect to it. It must be considered as having been abandoned as a ground of defense, although a large part of the evidence for the defendants, at the trial, relates to this subject, and was offered for the purpose of fastening this charge upon the plaintiffs. The evidence entirely fails in this respect, as it also does, in my opinion, so far as it relates to the minor charge of false and
fraudulent representations of the purchase of the stock of Elle, covered by the original policy of insurance.
There was no written opinion of the court below reversing the judgment upon the report of the referee; but as no other questions have been discussed by the learned and ingenious counsel for the defendants, it may be assumed, I think, that there were no other causes for the reversal of the report than those which have been here discussed.
The facts found by the referee emphatically warrant the judgment in favor of the plaintiffs; and the evidence, in my opinion, satisfactorily and clearly sustains his findings.
The order of the General Term should be reversed, and the judgment on the referee's report be affirmed, with costs.